Citation Nr: 0731199
Decision Date: 10/03/07 Archive Date: 10/16/07
DOCKET NO. 06-29 250 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Providence,
Rhode Island
THE ISSUE
Entitlement to a disability rating in excess of 50 percent
for posttraumatic stress disorder (PTSD), to include whether
a reduction of a 70 percent rating to 50 percent was proper.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Mainelli, Counsel
INTRODUCTION
The veteran served on active duty from April 1964 to December
1970.
This case comes before the Board of Veterans? Appeals (Board)
on appeal from an April 2006 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Providence, Rhode Island. Procedurally, the veteran filed a
claim for an increased rating for PTSD, evaluated as 70
percent disabling, in August 2005. Following development of
the claim, the RO proposed a rating reduction from 70 to 50
percent in January 2006. In April 2006, the reduced the
evaluation for PTSD to 50 percent effective July 1, 2006.
The issue on the title page has been rephrased to better
reflect the claim on appeal. See AB v. Brown, 6 Vet. App. 35
(1993) (a claimant is presumed to seek the maximum benefit
available). In May 2007, the veteran appeared and testified
before the undersigned at a Travel Board hearing held at the
Providence RO. The hearing transcript is associated with the
claims folder.
FINDINGS OF FACT
The veteran's PTSD, which results in less than total social
and occupational impairment, has not shown improvement under
the ordinary conditions of life.
CONCLUSIONS OF LAW
1. The criteria for restoration of a 70 percent rating for
PTSD have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002
& Supp. 2006); 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.7,
4.10, 4.130, Diagnostic Code 9411 (2007).
2. The criteria for a rating in excess of 70 percent for
PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002
& Supp. 2006); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.7, 4.10,
4.130, Diagnostic Code 9411 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. VCAA
The Veterans Claims Assistance Act of 2000 (VCAA), in part,
describes VA's duties to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006);
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative of any information, and any
medical or lay evidence, that is necessary to substantiate
the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R.
§ 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183
(2002). Proper VCAA notice must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
(3) that the claimant is expected to provide; and (4) must
ask the claimant to provide any evidence in his or her
possession that pertains to the claim. 38 C.F.R.
§ 3.159(b)(1) (2007). The notice should be provided to a
claimant before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim. Pelegrini v.
Principi, 18 Vet. App. 112 (2004); see also Mayfield v.
Nicholson, 19 Vet. App. 103 (2005). A section 5103 notice
for an increased rating claim might require notice for
establishing an effective date of award. See Dingess v.
Nicholson, 19 Vet. App. 473, 491 (2007).
The veteran filed a claim for increased rating in August
2005. An RO letter dated August 2005, that preceded the
initial adjudication, advised him of the types of evidence
and information deemed necessary to substantiate his claim
and the relative duties upon himself and VA in developing his
claim. He was advised to inform the RO about any additional
evidence or information he wanted considered or to submit
such evidence himself directly. During a September 2005 PTSD
examination, he reported having received no treatment for his
PTSD. He further reported that he was in receipt of
disability benefits from the Social Security Administration
(SSA) for nonservice-connected congestive heart failure.
By letter dated January 2006, the RO notified the veteran of
a proposal to reduce his rating for PTSD from 70 percent to
50 percent disabling. The veteran was afforded a 60-day
period to present additional evidence to show that
compensation payments should be continued at the 70 percent
level. See 38 C.F.R. § 3.105(e) (2007). He was further
afforded a 30-day period to request a predetermination
hearing. See 38 C.F.R. § 3.105(i) (2007). After receipt of
additional evidence and expiration of the 60-day period, the
RO issued a decision in April 2006 reducing the evaluation
for PTSD from 70 percent to 50 percent disabling effective
July 1, 2006. 38 C.F.R. § 3.105(i)(2)(i) (2007).
A notice error is presumed prejudicial to the veteran unless
it is demonstrated that (1) any defect in notice was cured by
actual knowledge on the part of the claimant, (2) that a
reasonable person could be expected to understand from the
notice provided what was needed, or (3) that a benefit could
not possibly have been awarded as a matter of law. Sanders
v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In this case,
the preadjudicatory RO letter in August 2005 substantially
complied with the VCAA mandates with the exception of
advising him of the criteria for establishing an effective
date of award. The January 2006 RO letter advised him of the
potential application of an effective date for a reduced
rating. In addition to providing VCAA notice, the RO also
observed the due process provisions pertaining to rating
reduction cases. See 38 C.F.R. § 3.105(e) (2007). The Board
finds that the veteran has received all essential notice, has
had a meaningful opportunity to participate in the
development of his claim, and is not prejudiced by any
technical notice deficiency along the way. See Conway v.
Principi, 353 F.3d 1369 (Fed. Cir. 2004).
Regarding the duty to assist, the record includes all
available VA treatment records. There are no outstanding
requests to obtain private medical records for which the
veteran has both identified and authorized VA to obtain on
his behalf. VA provided the veteran examination in September
2005. Additional VA examination is not warranted as there is
no evidence of increased severity of disability since the
September 2005 VA examination. VAOPGCPREC 11-95 (Apr. 7,
1995). The veteran reports an award of SSA disability
benefits based on non-service connected congestive heart
failure. It is not claimed, or suggested by the medical
evidence, that the veteran manifests any of the
symptomatology supporting a 100 percent schedular rating for
PTSD. On the facts of this case as alleged by the veteran,
there is no reasonable possibility that the SSA records would
contain any relevant information that could justify a 100
percent schedular rating for PTSD. The evidence of record is
sufficient to decide the claim, and there is no reasonable
possibility that any further assistance to the veteran would
be capable of substantiating his claim.
II. Applicable law and regulation
Disability ratings are based on the average impairment of
earning capacity resulting from disability. 38 U.S.C.A.
§ 1155 (West 2002); 38 C.F.R. § 4.1 (2007). Separate
diagnostic codes identify the various disabilities. Where
there is a question as to which of two evaluations shall be
applied, the higher evaluations will be assigned if the
disability more closely approximates the criteria required
for that rating. Otherwise, the lower rating will be
assigned. 38 C.F.R. § 4.7 (2007). A rating specialist must
interpret reports of examination in light of the whole
recorded history, reconciling the various reports into a
consistent picture to accurately represent the elements of
disability present. 38 C.F.R. § 4.2 (2007).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, present level of disability is of primary concern.
See Francisco v. Brown, 7 Vet. App. 55 (1994). The Board
reviews all the evidence in the veteran's claims folder, but
only summarizes the relevant evidence where appropriate, and
its analysis focuses specifically on what the evidence shows,
or fails to show, on each claim. See Gonzales v. West, 218
F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14
Vet. App. 122 (2000).
The claimant bears the burden to present and support a claim
of benefits. 38 U.S.C.A. § 5107(a) (West 2002 & Supp. 2006).
In evaluating claims, the Board shall consider all
information and lay and medical evidence of record.
38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2006). When there
is an approximate balance of positive and negative evidence
regarding any issue material to the determination of a
matter, the Board shall give the benefit of the doubt to the
claimant. Id.
The severity of a psychiatric disability is ascertained, for
VA rating purposes, by application of the criteria set forth
in VA's Schedule for Rating Disabilities at 38 C.F.R.
§ 4.130. With respect to evaluating psychiatric
disabilities, the symptoms cited in the rating criteria are
"not intended to constitute an exhaustive list, but rather
serve as examples of the type and degree of the symptoms, or
their effects, that would justify a particular rating."
Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).
The currently assigned 50 percent rating for PTSD, under
Diagnostic Code 9411, contemplates occupational and social
impairment with reduced reliability and productivity due to
such symptoms as: flattened affect, circumstantial,
circumlocutory, or stereotyped speech; panic attacks more
than once a week; difficulty in understanding complex
commands; impairment of short-and long-term memory; impaired
judgment; impaired abstract thinking; disturbances of
motivation and mood; difficulty in establishing and
maintaining effective work and social relationships.
38 C.F.R. § 4.130, Diagnostic Code 9411 (2007).
A 70 percent rating is warranted for occupational and social
impairment with deficiencies in most areas such as work,
family relations, judgment, thinking, or mood, due to such
items as: suicidal ideation; obsessional rituals which
interfere with routine activity; speech intermittently
illogical, obscure or irrelevant; near-continuous panic or
depression affecting the ability to function independently,
appropriately and effectively; impaired impulse control
(unprovoked irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances and
inability to establish and maintain effective relationships.
Id.
A 100 percent evaluation is warranted where there is total
occupational and social impairment, due to symptoms such as:
gross impairment in thought processes or communication;
persistent delusions or hallucinations; grossly inappropriate
behavior; persistent danger of hurting others; intermittent
inability to perform activities of daily living (including
maintenance of minimal personal hygiene); disorientation to
time or place; memory loss for names of close relatives, own
occupation or name. Id.
Global Assessment of Functioning score (GAF) is a scale
reflecting the "psychological, social, and occupational
functioning on a hypothetical continuum of mental health-
illness." See Richard v. Brown, 9 Vet. App. 266 (1996)
citing Diagnostic and Statistical Manual of Mental Disorders,
4th ed. 1994) (DSM- IV). Rating agencies are charged with
the responsibility of being thoroughly familiar with DSM-IV
in order to apply the general rating criteria for rating
mental disorders. 38 C.F.R. § 4.130 (2007).
A GAF of 40 is defined as "some impairment in reality
testing or communication (e.g., speech illogical, obscure, or
irrelevant) OR major impairment in several areas, such as
work or school, family relations, judgment, thinking or mood
(e.g., depressed man avoids friends, neglects family, and is
unable to work; child frequently beats up younger children,
is defiant at home, and is failing school)." A GAF of 50 is
defined as "serious symptoms (e.g., suicidal ideations,
severe obsessional rituals, frequent shoplifting) OR any
serious impairment in social, occupational, or school
functioning (e.g., no friends, unable to keep a job). A GAF
of 60 is defined as "moderate symptoms (e.g., flat affect
and circumstantial speech, occasional panic attacks) OR
moderate difficulty in social, occupational or school
functioning (e.g., few friends, conflicts with peers or co-
workers)."
Substantively, VA is required to comply with several general
VA regulations applicable to all rating-reduction cases,
regardless of the rating level or the length of time that the
rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10
(2007); Brown v. Brown, 5 Vet. App. at 413, 420 (1993).
These provisions impose a clear requirement that VA rating
reductions be based upon review of the entire history of the
veteran's disability. See Schafrath v. Derwinski, 1 Vet.
App. 589, 594 (1991). Such review requires VA to ascertain,
based upon review of the entire recorded history of the
condition, whether the evidence reflects an actual change in
the disability and whether the examination reports reflecting
such change are based upon thorough examinations. Thus, in
any rating-reduction case, not only must it be determined
that an improvement in a disability has actually occurred,
but also that that improvement actually reflects an
improvement in the veteran's ability to function under the
ordinary conditions of life and work. Id.
The rating stabilization procedural safeguards set forth in
38 C.F.R. § 3.344(a) and (b) are not applicable in the
instant case since they apply to ratings which have been in
effect for long periods at a sustained level (five years or
more). See Lehman v. Derwinski, 1 Vet. App. 339 (1991);
Smith v. Brown, 5 Vet. App. 335 (1993). In the instant case,
the 70 percent disability evaluation for PTSD had been in
effect less than five years (from June 17, 2002 to July 1,
2006)), prior to the rating reduction. However, the
provisions of 38 C.F.R. § 3.344(c) do apply, which state, in
pertinent part: "Reexaminations disclosing improvement,
physical or mental, in these disabilities will warrant
reduction in rating."
Historically, the veteran filed his original service
connection claim in June 2002. Evidence associated with the
claims folder included evaluation reports from the VA clinic
and the Vet Center that same month. This evidence showed
veteran to be unemployed. His VA clinic assessment noted him
to be tense when asked about his combat experiences, and not
being able to maintain eye contact. The Vet Center mental
status evaluation showed him to be unkempt, anxious, having
retarded speech, labile effect, agitated motor activity, and
short memory function. There was evidence of disorganized
thinking. He had sleep disturbance, decreased libido, low
energy and homicidal thoughts without plan. Otherwise, he
had an above-average intelligence, was fully oriented and
showed fair judgment. There were no delusions,
hallucinations or suicidal thoughts. His post-military
history was significant for problems with authority figures,
alcohol usage and three failed marriages. He was diagnosed
with chronic, delayed onset PTSD.
In pertinent part, a July 2002 letter from a Vet Center
Readjustment Counseling Therapist stated as follows:
... [The veteran] was exposed to trauma and on
several occasions he witnessed his Co. being killed
off by the enemy. He himself was wounded in action
and received the Purple Heart. This veteran has
had difficulties with readjustment; he continues to
have distressing dreams of combat. He avoids
activities associated with military; he has short-
term memory deficit; and he has a diminished
interest in activities he once enjoyed. This
decorated combat veteran has difficulty sleeping;
his concentration is poor, he is irritable and
displaces anger, and is vigilant to surroundings
and area. It is the writer's belief that [the
veteran] is severely impaired from his combat
experiences...
VA PTSD examination in October 2002 additionally reported
that the veteran had a post-service history of multiple jobs
ranging from landscaping, driving a truck and as a dishwasher
on an oil rig. His job on the oil rig allowed him to be
isolated, but he stopped working in March 2002 as a result of
congestive heart failure. He described having a good
relationship with his daughter. He endorsed PTSD symptoms of
occasional nightmares with early awakening, intrusive
ideation with physiological symptoms such as heart racing and
sweating, brief flashbacks with loss of orientation,
substantial avoidance, avoidance of war experiences, social
isolation, numbing of emotions, thoughts of foreshortened
future, persistent sleep difficulty, anger, irritability,
concentration difficulty, startle response and
hypervigilance. On mental status examination, he was
casually dressed and appropriately groomed. He was friendly
and cooperative during the interview. He was oriented with
clear and coherent thought processes. He denied delusions or
hallucinations. His eye contact was good. His affect was
appropriate and his mood was euthymic. There was no serious
memory loss. He was negative for obsessive or ritualistic
behavior. His rate and flow of speech was normal. He
reported occasional attacks. He had some depressed mood that
never persisted more than hours or days. The examiner
diagnosed PTSD and assigned a GAF score of 48. The examiner
elaborated as follows:
The [GAF] score of 48 reflects the serious
impairment that this veteran experiences with no
close relationships outside of a recent re contact
with his daughter, and a very intermittent and
sporadic work history, i.e. inability to stay in
the same job. He has also symptoms of moderate to
severe intensity...
This veteran reports a fairly normal childhood.
His psychosocial status and functioning throughout
the years has impaired particularly in the areas of
relationships and ability to maintain employment.
He is extremely isolated. His isolation and work
impairment appears to be directly due to his PTSD
symptoms. His isolation seems to be a direct
effect of his fear of getting close and losing
somebody he cares about, as well as avoidance of
potential triggers of irritability, anger or
memories of Vietnam. His difficulty with
employment appears to be due to the anger that gets
triggered when he is under a supervisory situation.
When he is able to work alone he does much better.
There are no other disorders, which are present
that would be related to such impairment...
On this evidence, the RO's October 2002 rating decision
assigned a 70 percent initial rating for the veteran's PTSD.
The veteran filed a claim for an increased rating in February
2005. His VA clinical records do not reflect treatment for
PTSD. On VA PTSD examination in September 2005, he reported
living alone in public housing for the last three years. He
had not worked since an award of SSA disability benefits in
2002. He had not received any PTSD treatment since his Vet
Center evaluation. He felt that no employer would hire him
due to his PTSD and congestive heart failure. He described
himself as mostly "killing time" by watching television and
movies and reading. With nice weather, he sat outside and
interacted with his neighbors. He had regular contact, and
generally got along with, with his daughter and his three
grandchildren. He also had a veteran friend with whom he
socialized. He did not desire PTSD treatment which would
make him dwell in the past. He described occasional episodes
of intrusive thoughts and awakening in a sweat. He had
physiological anxiety responses to loud voices and violence
in movies. On mental status examination, he presented as
casually dressed, adequately groomed, and looking his stated
age. He was very tan as if he was spending a lot of time
outdoors. He was appropriate, cooperative, friendly, and had
a sense of humor. His affect was appropriate and consistent
with his described mood. His speech was normal in rate,
volume and articulation. His thought processes were logical
with appropriate content. He was fully oriented with no
evidence of delusional processes. He denied experiencing
audio or visual hallucinations, or having homicidal or
suicidal ideations. He performed well on cognitive
functioning testing. His abstract reasoning, as well as
remote and immediate memory, were all intact. The examiner
offered a diagnosis of PTSD, and provided the following
summary of findings:
In summary, this veteran does continue to meet
criteria for a diagnosis of PTSD associated with
exposure to combat trauma in Vietnam. However,
there was no notable increase in the severity of
his symptoms. He does experience some
physiological anxiety associated with certain
Vietnam-related triggers, avoids going into any
wooded situations, avoids talking about his combat
traumas, has some restriction of affect, has
difficulty forming close relationships, has a mild
sleep disturbance, some irritability and an
exaggerated startle response with some mild
hypervigilance. However, he did not indicate any
significant depression and does not have any
suicide ideation or ever experience any panic
attacks. He is not abusing any drugs or alcohol.
The veteran has not worked since 2002 since he has
been on Social Security Disability for congestive
heart failure. He has had significant heart
problems and had to have a coronary artery bypass
graft in 2003. He indicated that he feels that his
heart problems combined with PTSD cause him to be
unemployable. In addition, he is experiencing
worsening headaches that are happening more often.
It is this examiner's opinion that the veteran's
PTSD has not significantly worsened and that by
itself it does not cause him to be unemployable.
His physical health and recurrent headaches likely
do cause unemployability, and these are likely
exacerbated by his PTSD.
In May 2007, the veteran testified about his PTSD symptoms
since he was assigned a 70 percent evaluation. His daily
activities primarily involved watching television. He had
some relationships with his neighbors but, due to easy
irritation, he had a tendency to get into verbal conflicts.
He indicated having no true friends. He had a tendency to
forget things. He did not drive because he became easily
aggravated. His primary PTSD symptoms involved his
irritability and social isolation. He also referred to his
stress aggravating his service connected migraine headaches.
He last worked in 2002 due to congestive heart failure.
After review of the medical evidence, and having the benefit
of the veteran's testimony, the Board is not convinced at
this time that the veteran's PTSD has improved to the extent
of warranting a rating reduction. The September 2005 VA
examination report, that forms the basis for the rating
reduction, reflects medical opinion that the veteran's PTSD
"has not significantly worsened" since VA examination in
2002. This examiner neither offered an opinion as to whether
the veteran's PTSD symptoms had improved nor provided a GAF
score which could provide an objective measurement of an
overall improvement of the veteran's psychological, social,
and occupational functioning. To the extent that the
September 2005 VA examination report reflects a decrease in
the frequency and intensity of PTSD symptomatology, the Board
notes that the veteran has not worked making it difficult to
determine on one examination whether an actual improvement
has occurred in his ability to function under the ordinary
conditions of life and work. See 38 C.F.R. § 4.10 (2007)
(reminding rating personnel that a person may be too disabled
to engage in employment although he or she is up and about
and fairly comfortable at home or upon limited activity).
Accordingly, the Board finds that the veteran's PTSD is not
shown to have improved to an extent warranting a rating
reduction. The veteran's claim to restore his 70 percent
rating for PTSD, therefore, is granted.
As the veteran's 70 percent rating has been restored, the
issue remains as to whether he is entitled to the next higher
100 percent rating. The veteran describes social impairment
that is less than total as he maintains relations with his
daughter and his three grandchildren. He also has some
interrelationship with his neighbors. The VA examiner in
September 2005 found that the veteran's PTSD, by itself, did
not cause him to be unemployable. There is no allegation, or
evidence, that the veteran's PTSD manifests itself with
symptomatology such as gross impairment in thought processes
or communication, delusions, hallucinations, grossly
inappropriate behavior, a danger of hurting others, inability
to perform activities of daily living or disorientation. The
weight of the lay and medical evidence establishes that the
veteran's PTSD does not result in, or more closely
approximate, total occupational and social impairment. The
claim for a rating in excess of 70 percent, therefore, is
denied. There is no doubt of material fact to be resolved in
his favor. 38 U.S.C.A. § 5107(b) (West 2002).
To accord justice in an exceptional case where the schedular
standards are found to be inadequate, the field station is
authorized to refer the case to the Chief Benefits Director
or the Director, Compensation and Pension Service for
assignment of an extraschedular evaluation commensurate with
the average earning capacity impairment. 38 C.F.R.
§ 3.321(b)(1) (2007). The criterion for such an award is a
finding that the case presents an exceptional or unusual
disability picture with related factors as marked
interference with employment or frequent periods of
hospitalization as to render impractical application of
regular schedular standards. The Court has held that the
Board is precluded by regulation from assigning an
extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the
first instance; however, the Board is not precluded from
raising this question, and in fact is obligated to liberally
read all documents and oral testimony of record and identify
all potential theories of entitlement to a benefit under the
law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996).
The Court further held that the Board must address referral
under 38 C.F.R. § 3.321(b)(1) only where circumstances are
presented which the Director of VA's Compensation and Pension
Service might consider exceptional or unusual. Shipwash v.
Brown, 8 Vet. App. 218, 227 (1995).
In this case, the veteran's PTSD has not resulted in any
hospitalizations. In fact, he has not pursued clinical
treatment on an outpatient basis. He believes that his PTSD
contributes to his unemployability. His 70 percent rating
for PTSD contemplates loss of working time commensurate with
his level of disability. 38 C.F.R. § 4.2 (2007). His
medical records do not disclose any abnormal effects of his
PTSD. The medical opinion of record indicates that the PTSD,
alone, is not of sufficient severity to result in
unemployability. There is no objective evidence that his
PTSD has caused interference with employment beyond that
contemplated by his currently assigned 70 percent rating.
Having reviewed the record with these mandates in mind, the
Board finds no basis for further action. See VAOPGCPREC 6-96
(Aug. 16, 1996).
ORDER
The claim of entitlement to restoration of a 70 percent
rating for PTSD is granted, subject to the regulations
governing the payment of monetary benefits.
The claim for a rating in excess of 70 percent for PTSD is
denied.
____________________________________________
M. SABULSKY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs